Adams Outdoor Advertising Ltd. Partnership v. Long

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan,
Koontz, JJ., and Poff, Senior Justice

ADAMS OUTDOOR ADVERTISING
LIMITED PARTNERSHIP

v. Record No. 960944 OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 1997
ROBERT E. LONG

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge

This case involves competing claims to ownership of a

billboard located in the City of Hampton on land owned by

Robert E. Long and leased to Adams Outdoor Advertising Limited

Partnership (Adams). On October 6, 1993, Long notified Adams

that he was terminating the lease. Adams accepted the

cancellation, effective November 5, 1993, and told Long that it

would have electrical service disconnected and would schedule

the demolition of the billboard for the first week of November.

Long wanted to use the billboard to advertise his own business

and filed this action to enjoin Adams from demolishing or

removing the billboard. Long's request for relief was based on

his claim that the billboard was affixed to and part of the

land and, therefore, he, as landowner, owned the billboard.

Adams filed a separate bill of complaint asserting that the

leases entered into over the years provided that the lessees

owned the billboard. Both Adams and Long sought, and received,

temporary injunctions and executed injunction bonds. Adams was

enjoined from removing or destroying the billboard, although it

was permitted to place public service announcements on it.

Long was enjoined from using or altering the billboard.
 The cases were consolidated for trial and referred to a

commissioner in chancery. Following an ore tenus hearing, the

commissioner concluded that Long owned the billboard. The

trial court overruled Adams' exceptions to the commissioner's

report, affirmed the holding of the commissioner, and continued

the case for a hearing to determine damages. By final order

entered February 14, 1996, the trial court awarded Long $7,190

in damages. Adams appeals, asserting that the trial court

erred in its determination of both ownership of the billboard

and damages.
The billboard at issue is a structure permanently affixed

to the land. Whether such a structure remains personalty,

owned by the person who erected the structure, or becomes part

of the realty, and thus owned by the landowner, is determined

either by an agreement establishing the nature and ownership of

the structure or, in the absence of agreement, by applying the

three-part test enunciated by this Court in Danville Holding
Corp. v. Clement, 178 Va. 223, 232, 16 S.E.2d 345, 349 (1941).

The record in this case establishes that the lease agreements

between successive landlords and tenants addressed the issue of

ownership rights in the billboard.

The billboard was erected more than 65 years ago by

Consolvo & Cheshire, an advertising agency. At that time,

Consolvo & Cheshire negotiated a lease which provided that

"[a]ll boards and material placed on the premises" by the

lessee were the property of the lessee and that the lessee

could "remove their boards" from the premises on the
termination of the lease. Similar language regarding ownership

was contained in leases executed between Consolvo & Cheshire

and successive landowners in 1938 and 1945. Subsequent leases

executed in 1949, 1957, 1968, and 1977 between successor

landowners and different lessees, stated that "signs,

structures and equipment" erected by the lessee were the

property of the lessee and could be removed by the lessee.

Adams claims to be the owner under the terms of the 1977

lease or, alternatively, under the Danville test, because all
the leases show an intent that the lessee retain ownership of

the billboard. We agree that each lease does address the

ownership of the billboard, but places ownership in the lessee

who erected the billboard. Consolvo & Cheshire erected the

billboard in this case, and, therefore, Adams does not qualify

as the owner of the billboard under the terms of any of the

leases. Because the lease agreements clearly address ownership

of the billboard, application of the test enunciated in
Danville is unnecessary, and the trial court correctly rejected

Adams' ownership claim. 1

The trial court also correctly held that Long was the

owner of the billboard. When tenants retain ownership of

structures they erect on property and are allowed to remove the

structures, the removal generally must occur within a

1
Adams does not dispute the commissioner's finding that
although there was a series of billboard leases containing
similar language, Consolvo & Cheshire's lease was not assigned.
Therefore, Adams did not acquire an ownership interest through
assumption of a previous lessee's interest in the leasehold.
reasonable period after the end of the tenancy. If the

structure is not removed, it becomes the property of the

landlord because it is affixed to the land. 1 Raleigh C.

Minor, The Law of Real Property § 37 (Frederick D.G. Ribble

ed., 1928). This rule is based on a presumption of abandonment

and protects subsequent parties from interruption by a tenant

who returns to remove the fixtures. 8 Richard R. Powell,

Powell on Real Property ¶ 653, at 57-52 (Patrick J. Rohan ed.,

1996). The entry of a former tenant on the land to remove the

structure would itself constitute a trespass. 2 Thompson on
Real Property § 13.05(c), at 326, Thomas Edition (David A.

Thomas ed., 1994).

In this case, the tenant that constructed the billboard,

Consolvo & Cheshire, did not remove it at the conclusion of its

tenancy or within a reasonable time thereafter. Consequently,

the billboard, which was permanently affixed to the land,

became part of the realty and the property of the landowner.

When Long acquired the land, he acquired the billboard as part

of the land purchased. Therefore, we will affirm that part of

the trial court's judgment holding that Long owned the

billboard.

We next turn to the issue of the damages awarded by the

trial court. Long sought $16,475 which he asserted was the

fair market value of the billboard for the period during which

he was enjoined from using it. Long based this figure on
2
income received by Adams from the billboard in 1992 and 1993.
2
Long calculated an average daily gross income of $20.517,
 The trial court deducted certain expenses from Long's gross

revenue figure and awarded Long $7,190 in damages. We agree

with Adams that there is error in this award of damages.

The record does not show the basis for Long's theory that

his measure of damages is the fair market value of the

billboard. And we could find no case applying that measure of

damages in circumstances similar or analogous to the

circumstances in this case. We conclude, however, that the

proper measure of damages in this case is any damage suffered

by Long which was naturally and proximately caused by the

injunction. This is the standard used when determining damages

in an action on an injunction bond. Carr v. Citizen Bank &

Trust Co., 228 Va. 644, 651, 325 S.E.2d 86, 89 (1985). Here,

although Long did not file a separate action to recover on

Adams' injunction bond, he made an oral motion for damages when

the trial court ruled in his favor on the issue of ownership. 3

In both instances, the successful party seeks to recover

damages for an adverse impact suffered by virtue of the terms

of an injunction. Thus, the rationale for an award of damages

is the same in both instances.

Applying the proper measure of damages to the evidence

and multiplied that figure by the number of days between the
date of the injunction, November 3, 1993, and the date of the
hearing on damages, January 16, 1996. Although the injunction
allowed Adams to display public service advertisements during
the injunction period, Adams did not receive any revenue from
the placement of these advertisements.
3
Adams did not object to Long's motion for damages, only
to the method used by the court to determine damages.
presented in this case, we conclude that Long is not entitled

to any damages. The injunction prevented Long from using or

altering the billboard and allowed Adams to place public

service advertisements on it. Long testified that he intended

to use the billboard to advertise his own business, but he

failed to introduce any evidence of damage he suffered because

he was prevented from advertising his own business on the

billboard. The only evidence he produced related to revenue

generated and received by Adams, in the course of its outdoor

advertising business. This evidence has no relevance to any

damages Long may have incurred resulting from his inability to

advertise his own business on the billboard. Furthermore, Long

did not claim or produce evidence that he was damaged by Adams'

failure to pay rent for the use of the billboard during the

injunction period. Accordingly, we will reverse that portion

of the judgment awarding damages to Long and will enter final

judgment in favor of Adams on that issue.
Affirmed in part,
reversed in part,
and final judgment.